Citation Nr: 0021967
Decision Date: 08/18/00 Archive Date: 08/23/00
DOCKET NO. 97-28 318 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Newark, New Jersey
THE ISSUES
1. Entitlement to an increased rating for post-traumatic
stress disorder (PTSD), currently evaluated as 50 percent
disabling.
2. Entitlement to a total rating for compensation purposes
based on individual unemployability.
REPRESENTATION
Appellant represented by: New Jersey Department of
Military and Veterans' Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Horrigan, Counsel
INTRODUCTION
The veteran had active service from September 1960 to October
1968.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1997 rating action that denied
an evaluation in excess of 50 percent for PTSD and also
denied an entitlement to a total rating for compensation
purposes based on individual unemployability. In November
1997, the veteran appeared and gave testimony at a hearing
before a hearing officer at the RO. A transcript of this
hearing is of record.
In his substantive appeal (VA Form 9) dated in March 1998 the
veteran indicated that he wished a further RO hearing before
a hearing officer. Such a hearing was scheduled in May 1998,
but the veteran failed to report. He was thereafter
scheduled to appear at a hearing at the RO before a member of
the Board in May 2000, but he again failed to report. Later
in May 2000 the veteran again requested a hearing before a
member of the Board at the RO. This hearing was scheduled in
late July 2000, but the veteran again failed to report for
the hearing.
It is noted that the RO denied service connection for
alcoholism as secondary to PTSD in a rating action of August
1997. The veteran was informed of that decision by letter
dated in August 1997, but he did not file a notice of
disagreement in regard to this rating decision. Accordingly,
only the issues listed on the title page of this decision are
before the Board for appellate consideration at this time.
FINDINGS OF FACT
1. The veteran's PTSD results in no more than moderate social
and industrial impairment.
2. The veteran has a GED certificate and occupational
experience as a laborer, driver, and factory worker; he
last worked in 1990.
3. The veteran's service connected PTSD does not preclude him
from pursuing gainful employment compatible with his
education and occupational experience.
CONCLUSION OF LAW
1. The criteria for an evaluation in excess of 50 percent for
PTSD have not been met. 38 U.S.C.A. § 1155, 5107(a) (West
1991 & Supp. 2000); 38 C.F.R. § 4.132, Diagnostic Code
9411 (effective prior to November 7, 1996) and 38 C.F.R.
§ 4.130, Diagnostic Code 9411 (1999).
2. The criteria for a total rating for compensation purposes
based on individual unemployability have not been met.
38 U.S.C.A. §§ 1155, 5107(a) (West 1991 & Supp.
2000);38 C.F.R. § 4.16 (1999)
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
VA outpatient treatment records reflect occasional treatment
in 1996 for psychiatric symptoms due to PTSD. During a VA
hospitalization in June 1996 for the treatment of alcoholic
liver disease with cirrhosis and alcoholism, the discharge
diagnoses included PTSD with depression.
On VA psychiatric examination in August 1996, the veteran
said that he had not worked since 1990. He said that he was
intolerant of even minor stress, which caused outbursts of
rage and agitation. He said that he was able to concentrate
as long as he was alone, but the presence of other people
bothered him. The veteran also said that he had no friends
and that his only contacts are his father and his sister,
both of whom resided in other states. He complained of poor
sleep, night sweats, and combat nightmares that occurred on a
weekly basis. Lapses of concentration and intrusive memories
of Vietnam were noted. He said that he startles excessively
when exposed to any sudden sharp sound. It was said that he
avoided crowds and public places. On evaluation, the veteran
was alert and oriented times three. His appearance was
conventional, but he appeared apprehensive when he reflected
on combat. His speech and communication were normal and his
affect was appropriate. Mood was neutral, but persecutory
ideation was expressed. Ideas of reference were reported.
Memory and concentration were intact. Intelligence was
average, but insight was poor. Judgment was compromised when
under stress. The veteran was reported to become agitated
with minimal stress. The diagnosis on Axis I was PTSD. On
Axis III the diagnoses were alcohol abuse with addiction,
liver cirrhosis, and asthma. A GAF score of 50 was reported,
which was said to represent serious social and industrial
impairment.
During a hearing before a hearing officer at the RO in
November 1997, the veteran said that he was under treatment
for psychiatric symptoms due to PTSD. He stated that he
received medication for his nerves. He complained of
sleeping difficulties and nightmares, and estimated that he
got, at most, 6 or 7 hours sleep a night. The veteran said
that he last worked in 1990 in a tool and dye factory. He
indicated that he quit this job because of too much stress.
On VA psychiatric examination in September 1998 the veteran
complained of the "shakes". He indicated that he did not
think about the war unless he heard thunder and lightning,
which "throws me for a loop". He said that his sleep was
only fair and he occasionally dreamt of the war. The veteran
reported some degree of depression, but denied suicidal
ideation. He said that his appetite was fair. On
evaluation, the veteran was verbal, alert, and cooperative.
He was well oriented in all spheres, and his speech was
generally relevant and coherent. No formal thought disorder
was present. Hallucinations and delusions were not found.
His mood was somewhat dysphoric and his affect appeared
somewhat constricted. Memory and concentration appeared
impaired, especially when the veteran was under stress.
Insight and judgment were fair. The diagnoses on Axis I were
PTSD and chronic and severe alcohol abuse. The veteran's GAF
was 60. The examiner said that the veteran had moderate
symptoms of PTSD, which caused moderate social and
occupational impairment. The presence of alcoholism also
appeared to affect the veteran's ability to profit from
gainful employment.
II. Legal Analysis.
The Board notes initially that it finds the veteran's claims
for an increased rating for PTSD and a total rating for
compensation purposes based on individual unemployability to
be well grounded, in that these claims are plausible. All
necessary development has been completed in regard to these
issues, and no further action is necessary to comply with the
VA's duty under the provisions of 38 U.S.C.A. § 5107 (a) to
assist the veteran in the development of these claims.
Disability evaluations are determined by application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
The rating criteria for psychiatric disabilities were amended
effective November 7, 1996. The United States Court of
Veterans Appeals (since March 1, 1999, the United States
Court of Appeals for Veterans Claims or Court) has held that,
where a law or regulation changes after a claim has been
filed or reopened, but before the administrative or judicial
appeals process has been concluded, the version most
favorable to the veteran will apply. Karnas v. Derwinski, 1
Vet. App. 308 (1991).
Under rating criteria in effect prior to November 7, 1996, a
50 percent rating is warranted for PTSD when the ability to
establish and maintain effective or favorable relationships
with people is considerably impaired and by reason of
psychoneurotic symptoms, the reliability, flexibility and
efficiency levels are so reduced as to result in considerable
industrial impairment. A 70 percent rating is warranted
where the ability to establish and maintain effective or
favorable relationships with people is severely impaired and
the psychoneurotic symptoms are of such severity and
persistence that there is severe impairment in the ability to
obtain or retain employment. In order to warrant the next
higher evaluation of 100 percent, it must be shown that the
attitudes of all contacts except the most intimate are so
adversely affected as to result in virtual isolation in the
community; there must be totally incapacitating
psychoneurotic symptoms bordering on gross repudiation of
reality with disturbed thought or behavioral processes
associated with almost all daily activities such as fantasy,
confusion, panic and explosions of aggressive energy
resulting in profound retreat from mature behavior; the
claimant must be demonstrably unable to obtain or retain
employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (prior
to November 7, 1996).
Under the criteria for rating psychiatric disorders since
November 7, 1996 a 50 percent rating is assigned when there
is occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment, impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships. A 70
percent rating requires occupational and social impairment,
with deficiencies in most areas, such as work, school, family
relations, judgment, thinking, or mood, due to such symptoms
as: suicidal ideation; obsessional rituals which interfere
with routine activities; speech intermittently illogical,
obscure, or irrelevant; near-continuous panic or depression
affecting the ability to function independently,
appropriately and effectively; impaired impulse control (such
as unprovoked irritability with periods of violence): spatial
disorientation; neglect of personal appearance and hygiene;
difficulty adapting to stressful circumstances (including
work or a worklike setting); inability to establish and
maintain effective relationships. A 100 percent rating is
warranted where there is total occupational and social
impairment, due to such symptoms as: gross impairment of
thought processes or communication; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or place;
memory loss for names of close relatives, own occupation or
own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999).
A total rating for compensation purposes may be assigned
where the schedular rating is less than total, when it is
found that the disabled person is unable to secure or follow
a substantially gainful occupation as a result of a single
service-connected disability, ratable at 60 percent or more,
or as a result of two or more disabilities, provided at least
one disability is ratable at 40 percent or more, and there is
sufficient additional service-connected disability to bring
the combined rating to 70 percent or more. 38 C.F.R. §
4.16(a) (1999).
It is the established policy of the VA that all veteran's who
are unable to secure and follow a substantially gainful
occupation by reason of service-connected disability shall be
rated as totally disabled and a total rating for compensation
purposes based on individual unemployability may be assigned
on an extraschedular basis in such cases.38 C.F.R. § 4.16(b)
(1999).
After a review of the evidence in this case, it is the
opinion of the Board that an evaluation in excess of 50
percent for PTSD is not warranted under either the schedular
criteria in effect prior to November 7, 1996, or the
schedular criteria which became effective on and after
November 7, 1996. On VA examination in August 1996 the
veteran was noted to become agitated under provocation and
displayed poor insight and some paranoid ideation with ideas
of reference. However, he was fully oriented and his speech
and communication skills were intact. Memory and
concentration were also intact. On VA examination of
September 1998 the veteran was noted to be coherent,
relevant, and free of any thought disorder. The veteran was
again found to be well oriented. Although memory and
concentration were impaired, the examining physician assessed
the veteran's PTSD symptoms causing moderate social and
occupational impairment. Alcoholism was noted to contribute
to the veteran's occupational impairment, but, as noted
earlier in this decision, the RO has denied secondary service
connection for alcohol abuse and this disorder is not, and
may not be a basis for the award of compensation benefits.
See VAOPGCPREC 7-99 (June 9, 1999).
Under the criteria for evaluating the veteran's PTSD in
effect prior to November 7, 1996, psychiatric symptomatology
must result in severe social and industrial impairment to
warrant an evaluation in excess of 50 percent. Such
symptomatology has not been demonstrated in this case. The
veteran's social and occupational impairment due to PTSD is
currently assessed to be no more than moderate in degree.
Therefore, an evaluation in excess of 50 percent for PTSD
under the schedular criteria for evaluating this disability
in effect prior to November 7, 1996, have not been met.
In regard to the criteria for evaluating the veteran's PTSD
which came into effect on and after November 7, 1996, the
Board notes that the evidence shows some occupational and
social impairment due to agitation and impaired judgment
under stress, as well as some memory and cognitive
impairment. However, the record does not currently
demonstrate such symptomatology as suicidal ideation;
obsessional rituals which interfere with routine activities;
intermittently illogical, and obscure or irrelevant speech;
near-continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence): spatial disorientation; or neglect
of personal appearance and hygiene. Again, the examiner on
the veteran's most recent VA examination assessed the
veteran's psychiatric symptoms as causing moderate social and
occupational impairment. Symptomatology of this extent does
not warrant an evaluation in excess of 50 percent under the
current criteria for evaluating PTSD.
In regard to the issue of entitlement to a total rating for
compensation purposes based on individual unemployability, it
is stressed that the veteran's PTSD, currently rated as 50
percent disabling, is his sole service connected disability.
Since this sole service connected disability is not 70
percent disabling, a total rating for compensation purposes
based on individual unemployability under the provisions of
38 C.F.R. § 4.16(a) is clearly not warranted. Since it is
apparent that the veteran's occupational impairment due to
PTSD is no more than moderate at present, he is clearly not
precluded from pursuing gainful employment due to his service
connected PTSD. Therefore, 38 C.F.R. § 4.16(b) is also not
applicable in this case. Accordingly, a total rating for
compensation purposes based on individual unemployability is
not warranted.
ORDER
An increased rating for PTSD is denied.
A total rating for compensation purposes based on individual
unemployability is denied.
BRUCE E. HYMAN
Member, Board of Veterans' Appeals
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